The US Supreme Court ruled this week that the twentieth-century interpretation of so-called “birthright citizenship”—i.e., the idea that virtually anyone born inside the territory of the United States is an automatic citizen—is to be upheld. This further solidifies into US law the idea that children born on US soil to visiting foreign nationals—among many other non-citizens—are granted citizenship automatically.
Those who think that this decision will “settle” anything politically, however, are mistaken. Indeed, this decision—as with birthright citizenship in general—will increase political conflict over the presence of foreign nationals—both legal and illegal—within the United States. This is because birthright citizenship takes two separate phenomena—immigration and citizenship—and fuses them together. By combining the two, the imposition of birthright citizenship takes foreign nationals—who may be in the United States for non-political economic reasons such as employment—and turns those foreign nationals into political actors.
That is, the granting of citizenship turns private, non-political persons into participants in US political institutions. This is because the granting of citizenship is not primarily about legal residency or access to the legal system. It is not necessary to be a citizen, after all, to reside legally in the United States, or to file lawsuits, or to defend one’s self in court. It is already well established that the Bill of Rights applies to “persons” and not simply to “citizens.” In modern times, citizenship is really about the legal prerogative to participate in politics. Citizenship is about voting.
Citizenship vs. Immigration
Contrary to what some self-proclaimed libertarians might say, support for private-property rights does not require support of the widespread granting of citizenship. After all, citizenship, is not any sort of natural right at all, as it does not stem from property ownership of self-ownership. Unlike private property, citizenship as a concept does not exist outside state institutions. One cannot homestead citizenship or privately contract for citizenship. The “right” to citizenship is very much unlike, say, a right to own a gun, or a right to be secure in one’s papers. Both of these are simply rights to purchase, own, and control one’s own property.
Some libertarians have made some anemic and unconvincing attempts to claim that citizenship—by which is really meant the right to vote—is inseparable from one’s position on immigration. The claim is that citizenship is a critical procedural legal prerogative because voting supposedly is a tool for the protection of property rights. There is, of course, no evidence whatsoever that this empirical claim is true. If anything, the expansion of the franchise has led to immense growth in the size and scope of government, and its ability to steal property and violate property rights at will. The idea that a single citizen’s vote, out of the 150 million votes cast in a national election, will somehow protect that voter’s property rights, rests on little more than pro-democracy propaganda. This is partly why most eighteenth-century classical liberals, like John Locke and the Levellers, and the authors of America’s early constitutions, opposed universal suffrage.
Widespread suffrage has never been shown to increase freedom or lessen state power. Rather, citizenship is an administrative act of states, and has nothing to do with anything we might call “laissez-faire.” The spread of the idea of citizenship is more closely associated with state building and with the centralization of state power.
Rather than join together the issues of immigration and citizenship, experience shows it is entirely possible to be generally laissez-faire toward immigration while also refusing to push for the promiscuous granting of citizenship.
When we consider this great difference between immigration and citizenship, it is clear that, if we wish to simply respect the basic property rights of travelers, workers, and other foreign nationals within the United States, it is not necessary—either legally, logically, or conceptually—that every person who visits or resides within the United States for a time be granted the legal prerogative to vote. It is not necessary to have access to the ballot box in order for such persons—virtually all of whom are foreign nationals who are already citizens somewhere else—to hold a job, live in peace with one’s family, or own property in the United States. The same is true for their children, most of whom become citizens—via jus sanguinis—where their parents are citizens.
Effect on Immigration Politics
In contrast to this scheme for expanding ever more citizenship to foreign nationals, it would be more prudent to adopt a legal environment where the granting of citizenship is rare and limited to longtime taxpayers and residents with “skin in the game,” and to their family members.
This more-prudent position is likely to defuse much of the more vociferous opposition to immigration. After all, most people are accepting of the idea that it is not a problem to grant citizenship to a 20-year resident who is economically self-supporting, is not a net drain on taxpayer funds, and is integrated into the community. Many of us often peacefully engage with such people as business associates and community members.
The alternative to this gradual and fiscally conservative approach is to grant citizenship—i.e., voting rights—to persons who may have only the most superficial attachment to any community within the United States. The modern application of citizenship laws—especially in the form of birthright citizenship—means there are few legal impediments to granting voting rights to foreign nationals who are drains on the public fisc, who are only temporarily domiciled within the US, or otherwise not contributing to the polities in which they live. One can draw upon countless cases of foreign nationals abusing the birthright citizenship regime to exploit US net taxpayers. The case of Chinese “birth tourism” is just one example.
Indeed, the implications of unrestricted birthright citizenship are so absurd, that Justice Clarence Thomas points out this week that under the birthright-citizenship doctrine, the US could not even deny citizenship to US-born children who are “raised in foreign countries, join foreign armies, and fight wars against the United States.”
This is also why, historically, virtually no polity or political community—outside of places with perennial severe labor shortages like in the Americas in the nineteenth century—has contemplated birthright citizenship. Rather, polities have historically tied legal membership within a polity to those who are born to parents and into families that are already citizens and have well established social or economic connections to the community.
Now that the Court has indefinitely guaranteed a “right” of citizenship to children of foreign nationals in the United States, this greatly raises the stakes for immigration controls— controls that would not be nearly as attractive without the courts telling us that voting rights must be made readily available to millions of babies born to foreign nationals, and even raised in foreign countries.
The political effect is similar to that which results from granting US welfare benefits to foreign nationals. This has been apparent in increasingly prolific federal spending on alleged “refugees” and through the expansion of taxpayer funded programs: free emergency healthcare, free government schooling, free housing for “asylum seekers,” and more. Not surprisingly, the response has been rising opposition to immigration overall. The same has resulted from the federal government’s relentless drive to grant citizenship to rising numbers of immigrants, many of whom have been legal residents for only five years, and many others who skim off taxpayer-funded services. Birthright citizenship can specifically be used to increase welfare spending on immigrant households. Children born in the US to foreign nationals provide a legal loophole through which foreign-national heads-of-household receive welfare dollars with the stipulation that the money be spent on the citizen children. The result, of course, is that substantial amounts of taxpayer-funded benefits are doled out to foreign nationals. This further politicizes immigration.
Unfortunately, there is no end in sight to the current federal drive to expand government spending and voting rights for foreign nationals. Birthright citizenship is an important part of this scheme because it creates an easy way for foreign nationals to execute an end-run around limits on citizenship for their children. When those children are then used to access more welfare dollars and increase citizenship for family members through the “anchor-baby” strategy, the tax burden for many of these falls on the legacy taxpayers. Many of these longtime taxpayers know they are being exploited, so look to the only legal solution left to them: to greatly limit immigration as a means of limiting further citizenship for foreign nationals with little to no skin the game. Thanks to this week’s Supreme Court ruling, the political stakes are only growing.
Read More:
“Is There a Libertarian Position on Citizenship?“ by Ryan McMaken
“There Is No Property-Rights Case for Birthright Citizenship“ by Ryan McMaken
“Why the World Is Giving Up on Birthright Citizenship” by Ryan McMaken
“Abolish US Citizenship“ by Ryan McMaken
“How the Rise of National Citizenship Laws Built the Modern State“ by Ryan McMaken
“Don’t Confuse Immigration with Naturalization“ by Ryan McMaken
“The Problem with the Arbitrary Line between Legal and Illegal Immigration“ by Ryan McMaken
